based on a statement made by a Peruvian presidential candidate in a

media outlet, in which he questioned the effectiveness of a type of

vaccine acquired to control the infection and death due to the Covid19

pandemic, thus affecting the vaccination process established by the

Peruvian government, led us to question whether in a context like this,

the Peruvian Government, led us to question whether in a context such

as this, freedom of expression should be limited or whether it is a

democratic State under the rule of law.

El presente trabajo tiene como principal objetivo, el análisis de algunas

cuestiones problemáticas entorno a la libertad de expresión en proceso

electoral, y es que, a partir de una declaración de un candidato

presidencial de Perú, en un medio de comunicación, en la que se

cuestionada la efectividad de un tipo de vacuna adquirida para

controlar el contagio y muerte por la pandemia de la Covid19, afectando

así, el proceso de vacunación instaurado por el Gobierno peruano, nos

llevó a cuestionarnos, si en un contexto como éste, la libertad de

limitativas para garantizar, en un Estado democrático de derecho, la

paz y la tranquilidad social.

Keywords / Palabras clave

Freedom of expression, electoral process, fundamental rights, national

security, public order.

Libertad de expresión, proceso electoral, derechos fundamentales,

seguridad nacional, orden público.

Evidently, to speak of freedom of expression involves a great problem

antipathy of voters, outlines fanciful speeches, magical stories and

novelistic tragedies.

in addition to finding a limit in the respect for other rights, in a context

of pandemic, has collided in an even more dangerous border, which

can lead to social exacerbation, if the results of an assertion made in

an environment such as these are not calculated with prudence, which

will not find justification in the scope of the right to freedom of

expression.

Thus, for our analysis, we will take into consideration what happened

in Peru, in a small but not unimportant interview with the presidential

candidate Rafael Lopez Aliaga of the political party Renovación

In this context, it is worth asking ourselves whether, under the

protection of the right to freedom of expression, any person, and with

greater reason, a presidential candidate, can assert arguments that are

not within his scope of proof, or is it that the media where such

assertions are made, must previously grid and modulate the content of

what will be presented to the population, and if doing so would not be

violating the right to freedom of expression of said candidate.

Thus, this paper will attempt to unravel the questions raised, but not

before conducting a brief study of the scope and limits of the right to

freedom of expression, in order to determine the practical impact of

American Court of Human Rights (IACHR) and the European Court of

Human Rights (ECHR), regarding the essential content of the right to

freedom of expression, and its scope as a means to guarantee the

enjoyment of other fundamental rights and thus find a balance

between its exercise and limitation.

Although the origins of freedom of expression can be traced back to

the Enlightenment in the 18th century, when the concepts of

individual rights and the creation of the first constitutional

of expression took its course after the Second World War, when it

became a universal right, with the Universal Declaration of Human

Rights of December 10, 1948, stating in its Article 19° that: "Everyone

has the right to freedom of opinion and expression."

Thus, freedom of expression is the cornerstone of the very existence of

a democratic society. It is indispensable for the formation of public

opinion. Therefore, it is possible to affirm that a society that is not well

informed is not fully free. (García & Gonza, 2007) . Thus, the Peruvian

Constitutional Court has stated that freedom of expression "refers to

the ability to receive the personal views of the issuer, which, as they

community to develop fully. It is, finally, a condition for the

community, when exercising its choices, to be sufficiently informed

(Bedriñana, 2015).

than one proposal, qualification or opinion that will always be subject

to criticism in the public eye, both by the media and the voters, who

will always remain, to a certain extent, expectant to each of their

arguments in order to refine their choices between one candidate or

another.

society, since the functioning of the mechanisms of representation and

the conduct of democratic elections will depend on it. (Mathieu-Mohin

Considering the fundamental value of freedom of political expression

in political pluralism and democracy, the role of the press (and of the

media in general) in the dissemination of political opinions, as well as

in the exchange of information between political leaders and society,

is of vital importance. This has been pointed out by the European

Court of Human Rights, in its judgment in the Castells v. Spain Case

(1992), when it stated that it (the press) "enables everyone to

25).

plurality of constitutions, it is expressly stated that no one may be

harassed or persecuted on account of his ideas or opinions, nor

discriminated against on account of them, and this is also the

understanding of Ernesto Villanueva (Villanueva, 1997)(Villanueva,

1997), pointing out that freedom of expression, "has as its object

thoughts, ideas and opinions, a broad concept within which beliefs and

In contrast to the Spanish Constitution, the Peruvian Magna Carta, in

its Article 2, paragraph 4, states that everyone has the right "to

We can then affirm that freedom of opinion is presented as a way of

exercising the right to freedom of expression in any context, whether

electoral or of any other nature, in which citizens -candidates- may

social tranquility.

As has been pointed out, although freedom of expression is a

fundamental right, as a manifestation of thought, it is not absolute and

therefore finds necessary limits to safeguard equally important

demands, such as the honor and reputation of others or the security of

particular case, we must necessarily carry out a proportionality

analysis of the facts and circumstances in order to evaluate the

rationality and reasonableness of the restrictive measure or measures.

However, according to the international legal system, both for

countries subject to the jurisdiction of the American and European

been precise in pointing out that the right to liberty will be defeated in

the face of particular circumstances, such as those indicated in

paragraphs 4 and 5 of its Article 13°, highlighting that:

4. Public entertainment may be subject by law to prior censorship for

For its part, the European Convention on Human Rights has stated

that interference with the exercise of freedom of expression is

permissible only if it is "prescribed by law", "pursues a lawful aim",

and "is necessary in a democratic society" (Atienza, 2007, p.68).

(Atienza, 2007, p.68).(Atienza, 2007, p.68), in accordance with the

provisions of Article 10, paragraph 2 of the same Convention, which

2. The exercise of these freedoms, which carry with them duties and

responsibilities, may be subject to such formalities, conditions,

restrictions or penalties as are prescribed by law and are necessary in

Thus, it is clear that interference with the right to freedom of

expression is exceptional, but such exceptionality must be previously

established by law, always obeying the protection and guarantee of

equally safeguarded constitutional values, in that sense, when we are

facing an electoral contest, as Sergio García Ramírez and Alejandra

Freedom of thought and expression in its two dimensions constitutes

a fundamental bastion for the debate during the electoral process,

since it becomes an essential tool for the formation of the voters' public

opinion, strengthens the political contest between the different